Waiving Environmental Protections in the Bay Delta: Bad News for Fishermen, Water Supply, and BDCP

Earlier this week, the National Marine Fisheries Service waived environmental protections for endangered steelhead in the Bay-Delta, in order to allow increased pumping by the CVP and SWP over the next few weeks. This was the second time in as many months that this federal agency waived pumping restrictions protecting endangered salmon and steelhead (NOTE: there have been no pumping restrictions protecting delta smelt this year). In addition, the State Water Resources Control Board has also granted multiple waivers of water quality protections in the Delta, protections which have generally been in place since the 1990s. The environmental protections for salmon and other fisheries in the Bay-Delta are already far weaker in dry years than in wet years, but these decisions to relax environmental protections in the Delta came as a result of significant political pressure from San Joaquin Valley agribusiness interests. While these waivers of environmental protections may be justified by political science, they clearly are not justified by biological science.

California’s salmon and steelhead – and the thousands of fishing jobs that depend on them – are at significant risk from these actions to relax environmental protections during the drought. The National Marine Fisheries Service has warned that we could lose the entire year class of winter run Chinook salmon this year as a result of drought and water mismanagement, and the U.S. Fish and Wildlife Service has warned that we could lose the entire year class of wild fall run chinook (the backbone of the state’s salmon fishery) this year. The fact that fewer salmon and steelhead have been salvaged at the pumps so far this year isn’t a sign that we can safely increase pumping; rather, state and federal agencies, the courts, and independent scientists agree that the number of salmon and other fish salvaged at the pumps is a small fraction of the fish harmed and killed by water project operations, and that the take limits are not the default level at which the projects should be operated. Once fish show up at the pumps, the damage has already been done.

NMFS concluded in the 2009 biological opinion that these pumping restrictions were necessary to avoid driving these salmon and steelhead runs to extinction, and a few years ago agency biologists testified under oath in court that waiving these same pumping restrictions would greatly increase the harm to salmon and steelhead and would deepen the jeopardy to these species. The National Academy of Sciences concluded that the environmental protections in the biological opinion generally were “scientifically justified.” After trial, the district court also upheld the pumping restrictions that were supposed to be in place in April and May of this year (upholding the 1:1 ratio in dry years, but remanding the more restrictive 4:1 ratio in wet years). Senator Feinstein’s drought legislation (S. 2198) also explicitly requires implementation of the 1:1 pumping ratio that was waived by the agencies. Yet despite all this, the rules were waived.

How we manage water during a drought has consequences that last for decades. During the last major drought in California (1987-1992), numerous species were first listed under the Endangered Species Act, including winter run chinook salmon: in 1991 only 211 winter run returned to the Sacramento River, down from more than 50,000 fish only a few decades earlier. Scientists have also concluded in peer reviewed research that water mismanagement during that and earlier droughts facilitated invasive species in the Delta, problems that persist to this day. Our native fish and wildlife are adapted to drought conditions, but they are not adapted to the additional harm caused during droughts by unsustainable water diversions, the installation of migratory barriers, and numerous other impacts, large and small. The Delta and its wildlife are suffering death by a thousand cuts during this drought, and are likely to pay a price for years to come. And that will affect not just the environment, but all of us.

Increased pumping during this drought and reduced flows will likely result in further declines of listed salmon and other fisheries, which in turn are likely to result in more restrictions on salmon fishing -- and more stringent restrictions on water export pumping by the CVP and SWP in the future. These restrictions generally depend in part on how winter run and other endangered fisheries are doing – when there are more endangered fish, more can be killed at the pumps or in the ocean fishery. While some agribusinesses in the San Joaquin Valley may get a little more water this year from waiving these environmental rules, in the long run, water supplies will likely be reduced, and fishermen will also suffer.

And by waiving environmental standards in the Delta, the agencies have also dramatically undermined the likelihood that the Bay Delta Conservation Plan will ever succeed. BDCP is premised on the idea that stakeholders can trust that the new facilities will be operated according to environmental and operating rules to protect fish and wildlife. The State also says that that water exports under BDCP will be lower in the dry years, as a result of climate change and operating rules to protect fish and wildlife. Yet after waiving state and federal environmental rules multiple times this year, why should anyone believe these claims? For instance, would the bypass flows necessary to protect salmon as they migrate past the new intakes have been waived, in order to increase water supply to contractors? Would outflow requirements have been waived to increase exports? After all, the SWRCB waived outflow requirements this spring, except for the minimum outflow to control salinity for the export pumps; if there was a new pumping facility on the Sacramento River, would SWRCB have allowed outflow to go to zero – harming the delta environment and leaving hundreds of thousands of acres of farms in the delta, the Contra Costa Water District, and other municipal and industrial water users without water supply?

It’s also true that a new pumping facility on the Sacramento River might have resulted in a minimal amount of additional pumping capacity during the few storms we’ve had (of course the State also says that BDCP would produce less water than today in dry years like this one). In any event, the contractors would owe an additional $1.1 billion this year for financing payments, money that they could otherwise have spent on water conservation, recycling, water transfers, local water storage projects, and the like. And with a big new facility on the Sacramento River, BDCP would give the contractors and the agencies the ability to do even more damage to the environment and downstream water users. Numerous scientific reviews have concluded that BDCP has failed to use sound science, as the latest independent scientific peer review recently concluded; how much worse will it be when the contractors have more control over BDCP and the water projects? If the state and feds can’t stand up to the political pressure now, how will they do with the additional pressures of climate change, $1.1B per year in additional debt, and the contractors having more control over BDCP?

Ultimately, it is drought, not environmental protections, that are the cause of the vast majority of water supply impacts this year, as the Director of the Department of Water Resources has acknowledged: “The great majority of water shortage this year is purely a basis of drought. It’s not regulation.” And the UCLA Anderson Forecast predicts that the drought will have very minimal impacts on the state’s economy this year, in part because many parts of the state have adapted to drought and dry conditions through improved conservation. Yet by waiving environmental rules in the Delta for short term gain of special interests who haven’t prepared for drought, the State has reignited the water wars, drastically undermined long term solutions, and likely caused long term harm to the environment, fishing jobs, and water supply.

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